Top lawyer suffers blow to unfreeze account
Xulu’s urgent bid to have court order set aside dismissed
PROMINENT lawyer Barnabus Xulu was dealt yet another blow in his bid to set aside the freezing of the bank account of his firm Barnabas Xulu Incorporated (BXI).
The Western Cape High Court turned down his urgent application on Friday, with Judge Penelope Magona finding lack of reasons over the urgency of the application.
The freezing of Xulu’s account relates to an ongoing battle with the Department of Agriculture, Forestry and Fisheries (Daff) over procurement processes involving a May 2017 service level agreement (SLA) and a settlement agreement involving millions due to the department by BXI.
Daff spokesperson Albi Modise said the department had noted the judgment.
Xulu was in January ordered to pay back about R20.2 million in legal fees directed to his firm by Daff, which the court found he was not entitled to. This was after alleged fraud on signatures in the SLA agreement papers was discovered.
It had been recently ordered by Eastern Cape High Court judge John Smith that Xulu be tracked, his law firm’s account be frozen and his car and mansion be retrieved for the outstanding R20.2m.
During Friday’s hearing at the Western Cape High, just two hours before Daff was notified to attend, as they had claimed, their representative told Magona that the matter needed to be dismissed immediately and struck off the roll as it was not explicit.
Judge Mogana ruled in Daff’s favour with two payments due to them by Xulu, but it was later changed to only one after the applicant argued that “two payments were not necessary”.
Xulu’s legal representative Sibonile Khosa did not want to comment after the ruling, and directed all questions to his client or his employee, Ndumiso Ngcobo.
An angry and disappointed Xulu, whose Cape Town-based law firm had represented Western Cape High Court Judge President John Hlophe, argued that the Eastern Cape court had no jurisdiction in matters in the Western Cape.
“He (Judge Smith) was never appointed to deal with the freezing of my account by the Cape Town High Court. He granted two orders in my absence without notice and his orders are written that he was in Cape Town at the time. There is no evidence that he entered the Cape Town High Court building. He did this by remote control, and we have no idea where he was sitting granting these orders,” Xulu said.
“This is an injustice and violation to my dignity. My assets have been paraded and entered into by the sheriff based on this fraudulent court order. I have not violated at all. The level of victimisation I have been dealing with in the past two years is shocking, this after I have worked hard to become the first law firm in this country to recover more that R150 million. The hatred is shocking.”
Xulu added that the court ruling was unfair and that he will be heading back to court on the matter as his employees are also now affected.
“With this order being granted, it means that I am not able to trade. I have a right to trade and my employees need to be paid, as well as the building we are leasing, among others. I have no alternative if my business is closed for trading,” he said.
Ngcobo added: “With the company’s bank account being frozen, this will affect many workers including myself. Where will we get money to provide for our families and to pay our debt, among
others? The court did not consider the employees of BXI when they made this judgment. I am disappointed.”
Meanwhile, as Daff continues to tackle the issue in court, Xulu strongly believes, as previously alleged in court papers, that Daff’s non-payment of his firm’s fees and termination of BXI services in 2018 was a personal vendetta against him by Daff director-general Mike Mlengana because of BXI’s work with law enforcement agencies to combat undue influence, maladministration, criminality and corruption in the Daff.
Mlengana, who was suspended at the time, had returned to work and became aware of the SLA in late July 2018.
He claimed that he had then reported it to the Hawks as fraud was inconsistent with other evidence, which he made no mention of (fraud) when attempting to terminate BXI’s services. He also said that the company had been appointed by “a deviation process”, the court heard previously.
But Xulu argued that he did not understand why Mlengana repeatedly referred to his signature on the SLA as “purported” and that the SLA had been fraudulently concluded when he (Mlengana) explained to the court in papers why he denied having signed the SLA and how it might have come about that he unwittingly signed what turned out to be the last page of the purported contract – this according to the minutes of a court hearing last month.